Single Judge Application, Records Considered; 38 C.F.R. 3.159(c)(1); Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010)

Excerpt from decision below: "Mr. Moore argues that VA failed in its duty to assist him because it did not obtain employment and medical records that would support his claim. VA has a duty to assist a veteran in the development of claims, including assisting in the procurement of evidence necessary to substantiate a claim for benefits. 38 U.S.C. § 5103A(a). This duty is detailed in 38 C.F.R. § 3.159(c)(1) (2012): Upon receipt of a substantially complete application for benefits, VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. . . . VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. On his 2001 application for benefits, Mr. Moore stated that he lost 30 days of work while employed at the City of Savannah as a result of MS. R. at 350. There is no indication in the record that VA attempted to obtain these employment records. In 2005, and again during a 2010 Board hearing, Mr. Moore stated that approximately five years after service the Department of Defense terminated him from his job at Fort Stewart because he was medically unfit. R. at 29, 273. There is no indication in the record that VA attempted to obtain those records. These records pertain to Mr. Moore's medical condition during the seven-year period following his release from service, making them relevant to the pivotal issue of the claim. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (only those that "relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim" need be requested). VA made no effort to obtain the records, despite the fact that they were identified as employment records with the Department of Defense and the City of 2 Savannah, and Mr. Moore identified the approximate periods he was employed at each.1 ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1812 CLIFFORD MOORE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Army veteran Clifford Moore appeals through counsel from an April 25, 2011, Board of Veterans' Appeals (Board) decision that denied service connection for multiple sclerosis (MS) and an acquired psychiatric disorder. For the reasons that follow, the Court will set aside the April 2011 Board decision, and remand the matter for further adjudication. I. BACKGROUND Mr. Moore currently suffers from MS; this is undisputed by the Secretary. In June 2002, the regional office denied service connection for Mr. Moore's MS, and that decision became final. Record (R.) at 4, 9. The Board here found that new and material evidence had been submitted to reopen the claim and then denied it on the merits. The unresolved matter in this case is when Mr. Moore's MS began to manifest. Mr. Moore separated from the Army in 1970. The first diagnosis of MS in the record is dated 1984, 14 years afterseparation. R. at 600. The Secretary's regulation states that, regardless of whetherthecondition was diagnosed, if MS became manifest to a degree of 10% or more within seven years from the date of separation from service, it is considered to have been incurred in service. 38 C.F.R. § 3.307(a)(3) (2012). The Board found that Mr. Moore's MS "is not shown to have been manifested within seven years from his active service discharge or to be casually [sic] related to active service." R. at 3. Mr. Moore disputes this finding on the basis that he began suffering symptoms of MS as early as when he first began serving in the Army and that he had ongoing complications related to MS thereafter. II. ANALYSIS Mr. Moore argues that VA failed in its duty to assist him because it did not obtain employment and medical records that would support his claim. VA has a duty to assist a veteran in the development of claims, including assisting in the procurement of evidence necessary to substantiate a claim for benefits. 38 U.S.C. § 5103A(a). This duty is detailed in 38 C.F.R. § 3.159(c)(1) (2012): Upon receipt of a substantially complete application for benefits, VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. . . . VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. On his 2001 application for benefits, Mr. Moore stated that he lost 30 days of work while employed at the City of Savannah as a result of MS. R. at 350. There is no indication in the record that VA attempted to obtain these employment records. In 2005, and again during a 2010 Board hearing, Mr. Moore stated that approximately five years after service the Department of Defense terminated him from his job at Fort Stewart because he was medically unfit. R. at 29, 273. There is no indication in the record that VA attempted to obtain those records. These records pertain to Mr. Moore's medical condition during the seven-year period following his release from service, making them relevant to the pivotal issue of the claim. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (only those records that "relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim" need be requested). VA made no effort to obtain the records, despite the fact that they were identified as employment records with the Department of Defense and the City of 2 Savannah, and Mr. Moore identified the approximate periods he was employed at each.1 The Court, therefore, concludes that VA did not satisfy its duty to assist Mr. Moore in obtaining records relevant to his claim, and a remand is necessary for the Board to do so. Mr. Moore also argues that VA failed in its duty to assist him in obtaining a medical examination to determine whether his MS should be service connected. The Secretarymust provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing . . . certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service . . . but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). As to the first factor, there is no dispute that Mr. Moore currently suffers from MS. As to the second factor, the Court is remanding the claim for VA to obtain relevant records regarding whether evidence exists that his symptoms manifested during the seven years following his discharge. As to the third factor, the Court has explained that this presents a low threshold. Id. at 83. Although the Board found no indication that Mr. Moore's current MS may be associated with his service, the Board failed to consider whether the fact that Mr. Moore's vision deteriorated during service may have been an early symptom of his MS. The diagnostic code (DC) for MS directs VA to consider impairment of vision in rating MS. 38 C.F.R. § 4.124a (2012). Mr. Moore's separation examination noted myopia, while his induction examination reflected perfect vision. R. at 633, 645. The Board stated in its decision that "[h]is visual deficit was attributed to an objectively demonstrated refractive error of the eye." R. at 10. There is no medical report in the record that The Board identified inconsistencies with Mr. Moore's reports of dates of employment with the Department of Defense. In one document he stated he was terminated from employment as a plumber at Fort Stewart. R. at 273. In another document he stated he was employed at Hunter Army Airfield as an engineer and draftsman on a temporary basis for seven months. R. at 589-90. These two periods of employment appear to be unrelated. Additionally, the Board cited to no inconsistency with Mr. Moore's reports of employment with the City of Savannah, leaving no reason those records could not be requested. 1 3 contains this conclusion, however. This statement, therefore, is a medical opinion that the Board is prohibited from making. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). Because the Court is remanding the claim for further development, the Board must re- evaluate,basedonanyinformationobtainedonremand,whetheramedicalexamination is necessary. Onremand,theBoardmaynot substituteitsownmedicalopinion forindependent medical evidence. Id. The Board also denied service connection for Mr. Moore's psychiatric disorder as caused or aggravated by his MS. R. at 16. Because the Court is remanding the claim for MS, the claim for psychiatric disorder secondary to MS will also be remanded. III. CONCLUSION On consideration of the foregoing, the April 25, 2011, Board decision is SET ASIDE and REMANDED to the Board for further readjudication consistent with this decision. On remand, Mr. Moore will be free to submit additional evidence and argument in support of his claims, and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, maybe appealed to this Court on the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to Mr. Moore. See Marsh v. West, 11 Vet.App. 468, 472 (1998). DATED: August 31, 2012 Copies to: Robert V. Chisholm, Esq. VA General Counsel (027) 4